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In Moore v. Chrones, 687 F.Supp. 2d 1005, 1034 (C.D. Cal. 2010), the court considered the petitioner's claims of ineffective assistance for his counsel's alleged failure to sufficiently conduct research and include case law in a motion submitted to the court.
Summary of this case from United States v. BenfordOpinion
NO. CV 03-9543-PSG (MAN).
January 14, 2010
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition and related documents filed by Petitioner, all of the records herein, the Report and Recommendation of United States Magistrate Judge ("Report"), and the following documents filed by Petitioner on December 10, 2009: Objections to the Report and related Request to "Take Judicial" Notice of Lodging of Memorandum of Points and Authorities (collectively, the "Objections"); Motion Asking the Benefit of Liberal Construction; Application for Leave to Exceed the 25 Page Limitment [sic] . . .; Notice of Hearing on Motion for Summary Judgment by Petitioner, Motion for Summary Judgment by Petitioner, and Affidavit of Petitioner Larry B. Moore in Support of Motion for Summary Judgment (collectively, the "Summary Judgment Motion"); and Notice to "Take Judicial" Notice of Lodging of Documents in Support of Petitioner's Objection to United States Magistrate Judge[']s Report and Recommendation[] and to His Motion for Summary Judgment ("Notice"). The Court has conducted a de novo review of those matters to which objections to the Report have been made.
As Petitioner's various submissions in response to the Report were filed on December 10, 2009, this Application is deemed GRANTED.
The Court has reviewed the Summary Judgment Motion and related Notice. By the Summary Judgment Motion, Petitioner seeks summary judgment on several claims alleged in the First Amended Petition, as well as with respect to a host of additional claims that are not alleged in the First Amended Petition. The Summary Judgment Motion does not comply with Local Rule 56-1 and, thus, is procedurally improper. Moreover, Petitioner's attempt to raise numerous, and apparently unexhausted new claims, long after briefing has been completed, and through a summary judgment motion rather than through a 28 U.S.C. § 2254 habeas petition, is improper.
A district court has discretion, but is not required, to consider evidence or claims presented for the first time in Objections to a Magistrate Judge's Report and Recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). To the extent the Summary Judgment Motion raises additional claims that are not alleged in the First Amended Petition, the Court exercises its discretion to decline to consider Petitioner's belatedly-raised claims. However, to the extent the Summary Judgment Motion raises arguments pertinent to the habeas claims alleged in the First Amended Petition and considered in the Report, the Court deems such arguments to constitute objections to the Report and has considered such arguments in conjunction with its consideration of Petitioner's Objections to the Report. Accordingly, the Summary Judgment Motion is deemed to be DENIED as to both the claims alleged in the First Amended Petition and the newly-raised claims.
Having completed its review of the filings and records in this case, the Court accepts and adopts the Report and the findings of fact, conclusions of law, and recommendations therein. Accordingly, IT IS ORDERED that: (1) the First Amended Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on the parties.
LET JUDGMENT BE ENTERED ACCORDINGLY.